Reickenbacker v. Foster

Revised December 21, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-31121

BOBBY JOE REICKENBACKER; JAMES HOGG; LONNIE BARNES; VIDEL TASBY;

WARNER WILEY; MICHEAL JUENGAIN,

Plaintiffs-Appellees,

versus

M J FOSTER, JR, Etc; ET AL,

Defendants,

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

Defendant-Appellant.

Appeal from the United States District Court

For the Middle District of Louisiana

December 3, 2001

Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We are asked to decide whether Title II of the Americans with

Disabilities Act of 1990 and § 504 of the Rehabilitation Act of

1973 validly abrogate Eleventh Amendment sovereign immunity. We

hold that they do not, and that the state defendant here is

entitled to sovereign immunity. We therefore reverse.

I

On October 29, 1999, the plaintiffs filed a complaint in

federal district court seeking injunctive relief for a proposed

class of mentally ill prisoners in Louisiana for allegedly

deficient mental health services. That complaint asserted claims

against state officers under the Eighth Amendment and 42 U.S.C. §

1983, and claims against both state officers and the Louisiana

Department of Public Safety and Corrections (“LDPSC”) under Title

II of the Americans with Disabilities Act1 and § 504 of the

Rehabilitation Act.2

Plaintiffs amended their complaint to seek relief under the

ADA and Rehabilitation Act only against LDPSC. LDPSC, asserting

sovereign immunity, moved to dismiss the claim. The motion was

denied, and LDPSC appeals.

II

Under the collateral order doctrine, we have jurisdiction over

this appeal from a denial of a motion to dismiss on the grounds of

state sovereign immunity.3 Our review is de novo.4

1

42 U.S.C. § 12312.

2

29 U.S.C. § 794(a).

3

Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 284-85 (5th Cir. 2000).

4

Id.

2

III

The Eleventh Amendment, while textually extending sovereign

immunity only to suits against a State by citizens of another

state,5 also confirms that the Constitution's grant of judicial

power did not contemplate suits against the sovereign States

without their consent.6 Sovereign immunity can be waived,7 of

course, and it is no bar to suits for injunctive relief against

state officials.8 But there is no waiver here, nor any effort to

properly proceed under Ex parte Young.9

Congress may abrogate state sovereign immunity when it "both

unequivocally intends to do so and 'act[s] pursuant to a valid

5

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

U.S. Const. Amend. XI.

6

Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134

U.S. 1, 15-21 (1890).

7

Idaho v. Coeur d'Alene, 521 U.S. 261, 267 (1997). The plaintiffs invoke

this exception in the context of their Rehabilitation Act claim. See Part V.

8

Ex parte Young, 209 U.S. 123, 159-60 (1908).

9

The plaintiffs maintain that the Ex parte Young exception should be open

to them because their original complaint named state officials as defendants.

In the face of a statutory argument that the ADA did not permit suits against

individuals, the plaintiffs amended their complaint to remove the state officials

as defendants. It is axiomatic that Ex parte Young does not provide an exception

to sovereign immunity when a State (or its agency) is the defendant. See, e.g.

Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).

The fact that the plaintiffs' original complaint named the "correct" defendants

does not alter our determination that the Ex parte Young exception is unavailable

in the case now before us.

3

grant of constitutional authority.'"10 The ADA and Rehabilitation

Act indisputably contain unequivocal statements of intent to

abrogate.11 It is now settled that Congress may not act to abrogate

state sovereign immunity through any of its Article I enumerated

powers,12 but may abrogate state sovereign immunity through a proper

exercise of its powers under § 5 of the Fourteenth Amendment.13 As

a result, States may only be sued under the ADA and Rehabilitation

Acts to the extent that those statutes, inasmuch as they are

directed at unconstitutional discrimination by the States,14 are

appropriate exercises of the § 5 power.15 Before reaching this

question, we first address whether our prior holding that Title II

validly abrogated state sovereign immunity binds us still.

10

Board of Trustees of the Univ. of Ala. v. Garrett, 121 S.Ct. 955, 961

(2001) (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)).

11

See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh

amendment to the Constitution of the United States from an action in [a] Federal

or State court of competent jurisdiction for a violation of this chapter."); 42

U.S.C. § 2000d-7(a)(1) ("A State shall not be immune under the Eleventh Amendment

of the Constitution of the United States from suit in Federal court for a

violation of section 504 of the Rehabilitation Act of 1973 ...."); see also

Garrett, 121 S.Ct at 962 (finding unequivocal statement requirement met for ADA).

12

Seminole Tribe, 517 U.S. at 72-73.

13

Id. at 59.

14

See Part IV.D.2 and note 60.

15

Garrett, 121 S. Ct. at 962. Congress invoked § 5 in enacting the ADA.

Id. at 962 n.3 (citing 42 U.S.C. § 12101(b)(4)).

4

IV

A

LDPSC must demonstrate here that our decision in Coolbaugh v.

Louisiana16 that Title II of the ADA validly abrogated Eleventh

Amendment sovereign immunity has been so undercut by recent

decisions of the Supreme Court that it no longer binds us.17 “It

is the practice of this Circuit for three-judge panels to abide by

a prior Fifth Circuit decision until the decision is overruled,

expressly or implicitly, by either the United States Supreme Court

or by the Fifth Circuit sitting en banc.”18

B

In Coolbaugh, this Court held, following the Supreme Court’s

analytical framework in City of Boerne v. Flores,19 that the ADA

validly abrogated state sovereign immunity as an exercise of the §

16

136 F.3d 430 (5th Cir. 1998).

17

The parties agree that Title II of the ADA and § 504 of the

Rehabilitation Act should be treated identically in our sovereign immunity

analysis. Since the two statutes offer virtually identical protections, the

abrogation analysis is the same. See, e.g., Garcia v. SUNY Health Sciences

Center of Brooklyn, No. 00-9223, 2001 WL 1159970, at *10 (2d Cir. Sept. 26,

2001).

18

United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976); see also

Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir. 1997) (“Accordingly,

for a panel of this court to overrule a prior decision, we have required a

Supreme Court decision that has been fully heard by the Court and establishes a

rule of law inconsistent with our own.”).

19

521 U.S. 507 (1997).

5

5 power. While the suit was brought under Title II of the ADA,20

Coolbaugh also analyzed and referred to other portions of the ADA,

most notably Title I:

We are persuaded that Congress’ scheme in the ADA to

provide a remedy to the disabled who suffer

discrimination and to prevent such discrimination is not

so draconian or overly sweeping to be considered

disproportionate to the serious threat of discrimination

that Congress perceived .... For example, in Title I, 42

U.S.C. Section 12112(b)(5)(A) declares it discriminatory

to reject an employee whose mental or physical limitation

may be reasonably accommodated .... Congress made these

particularized judgments after hearing testimony on the

reasonableness and feasibility of these provisions.

In sum, the ADA represents Congress’ considered efforts

to remedy and prevent what it perceived as serious,

widespread discrimination against the disabled.21

In light of its holistic approach, other courts have characterized

Coolbaugh as holding that the entire ADA abrogates state sovereign

immunity, not just Title II.22

Of course, Coolbaugh's upholding of Title I has already been

overruled in Garrett v. Board of Trustees of the University of

Alabama,23 which held that Title I of the ADA did not validly

20

42 U.S.C. § 12132 (forbidding discrimination against the disabled in

“services, programs, or activities of a public entity”). Title I deals with

discrimination in employment practices. 42 U.S.C. §§ 12111 to 12117.

21

Coolbaugh, 136 F.3d at 437-38 (emphasis added).

22

See, e.g., Neinast v. Texas, 217 F.3d 275, 280 n.29 (5th Cir. 2000);

Thompson v. Colorado, 258 F.3d 1241, 1249 n.4 (10th Cir. 2001) (citing “courts

[that] have addressed the Eleventh Amendment by broadly considering the entire

ADA”).

23

121 S. Ct. 955 (2001).

6

abrogate state sovereign immunity.24 At the same time, Garrett

expressly declined to decide whether Title II of the ADA similarly

failed to abrogate state sovereign immunity.25

C

This Court has suggested several times that Coolbaugh may no

longer be good law.26 The plaintiffs argue, however, that our

decision in Neinast v. Texas27 reaffirmed Coolbaugh after the

Supreme Court's decision in Kimel v. Florida Board of Regents.28

LDPSC disagrees, which it must, arguing that Kimel implicitly

overruled Coolbaugh.

In Neinast, we struck down certain regulations promulgated by

the Attorney General of the United States, which prohibited the

24

Id. at 960.

25

Id. at 960 n 1 (“We are not disposed to decide the constitutional issue

whether Title II, which has somewhat different remedial provisions from Title I,

is appropriate legislation under § 5 of the Fourteenth Amendment when the parties

have not favored us with briefing on the statutory question.”).

26

See Shaboon v. Duncan, 252 F.3d 722, 737 (5th Cir. 2001) (stating that

“Coolbaugh would ordinarily remain governing law in this circuit unless the

analysis in Garrett plainly applies to Title II suits so as to overrule Coolbaugh

sub silentio,” but refusing to reach that question, which had not been briefed);

Kazmier v. Widmann, 225 F.3d 519, 529 (5th Cir. 2000) (“[T]he continuing validity

of Coolbaugh has been called seriously into question by the Supreme Court’s

subsequent decision in Kimel.”). Additionally, this Court affirmed, in light of

Garrett, a prescient district court decision that explicitly stated that

Coolbaugh was no longer good law in light of Kimel before Garrett was decided.

See Cooley v. Mississippi Dep’t of Trans., 96 F. Supp.2d 565, 568 (S.D. Miss.

2000), aff'd by unpublished opinion, 254 F.3d 70 (5th Cir. 2001) (per curiam).

27

217 F.3d 275 (5th Cir. 2000).

28

528 U.S. 62 (2000).

7

charging of fees for handicapped parking placards, as beyond the

power of Congress to abrogate state sovereign immunity, and a

fortiori beyond the Attorney General's delegated legislative

authority.29 Before deciding the case on those grounds, we stated

that “circuit precedent bars our consideration of whether the ADA

as a whole exceeds Congress’s power to abrogate under § 5.”30

Neinast was decided after Kimel, and therefore the plaintiffs

argue that Kimel does not affect Coolbaugh. The plaintiffs misread

Neinast. Anticipating the tightening in Garrett, we noted that

Kimel “possibly suggests a more vigorous application of the

congruence and proportionality test than the Coolbaugh court

gleaned from City of Boerne.”31 Neinast did not need to go further

and reach the validity of the statute, because it concluded that

the regulations at issue did not validly abrogate state sovereign

immunity. The narrowness of Neinast reflected the reality that it

ought to wait for Garrett.32

Turning now to Kimel and Garrett, we conclude that the

analysis in these cases undercuts our approach in Coolbaugh. As a

result, we are persuaded that the Supreme Court has effectively

overruled Coolbaugh.

29

Neinast, 217 F.3d at 282.

30

Id. at 280.

31

Id. at 280 n.29.

32

See id.

8

D

1

To determine whether the ADA was a valid exercise of the § 5

power, Coolbaugh first examined the scope of the constitutional

right, repairing to City of Cleburne v. Cleburne Living Center,

Inc.33 Coolbaugh did so because in Cleburne the Court held

unconstitutional under the Equal Protection Clause the refusal of

a local government to grant a special use permit for the operation

of a group home for the mentally retarded. Significantly, the

Court specifically refused to grant to disabled persons “suspect

class” status.34 Since then, courts have universally applied the

“rational basis” standard to classifications involving physical

disabilities.35

Some have read Cleburne to prohibit all state decisionmaking

based upon animus against a particular group,36 a view that Garrett

33

473 U.S. 432 (1985).

34

Id. at 446.

35

See Coolbaugh, 136 F.3d at 433-34 n.1 (listing cases).

36

See, e.g., Garrett, 121 S. Ct. at 971 (Breyer, J., dissenting) (“Adverse

treatment that rests upon such motives is unjustified discrimination in

Cleburne’s terms.”).

9

rejected.37 Coolbaugh deployed the rational basis standard,38 but

Garrett further refined the test:

Thus, the result of Cleburne is that States are not

required by the Fourteenth Amendment to make special

accommodations for the disabled, as long as their actions

towards such individuals are rational .... If special

accommodations for the disabled are to be required, they

have to come from positive law and not through the Equal

Protection Clause.39

In sum, the Court engaged in a more searching analysis of the scope

of the Equal Protection right, but that enterprise exposes no

deficiency of Coolbaugh. Rather, its bite was elsewhere.

2

Coolbaugh then applied City of Boerne to the ADA, insisting

upon "a congruence and proportionality between the injury to be

prevented or remedies and the means adopted to that end.”40 As

instructed by City of Boerne, Coolbaugh looked to the findings

Congress made when adopting the ADA to decide first the magnitude

of the problem Congress sought to remedy. This analysis did not

distinguish state discrimination from private or general societal

discrimination. Instead, Coolbaugh observed only that “the

37

Id. at 964 ("Although such biases may often accompany irrational (and

therefore unconstitutional) discrimination, their presence alone does not a

constitutional violation make.").

38

Coolbaugh, 136 F.3d at 434.

39

Garrett, 121 S. Ct. at 964 (emphasis added).

40

City of Boerne, 521 U.S. at 520.

10

extensive record compiled in the legislative history fully supports

Congress’ detailed findings of a serious and pervasive problem of

discrimination against the disabled.”41

The Supreme Court soon thereafter again narrowed the § 5 grant

of authority to Congress, first in Florida Prepaid Postsecondary

Educational Expense Board v. College Savings Bank,42 and then in

Kimel and Garrett. In these cases, the Court directed us to look to

specific findings of unconstitutional discrimination by States in

a § 5 abrogation analysis.43 Additionally, in Garrett, the Court

delineated the types of state unconstitutional action that can form

the foundation upon which Congress uses its § 5 remedial power.

Garrett insisted that Congress identify unconstitutional

discrimination by the States, not local governments,44 which do not

benefit from the protections of the Eleventh Amendment and

therefore cannot form the basis for an exercise of the § 5 power to

abrogate state sovereign immunity.45 Thus Coolbaugh's analysis of

41

Coolbaugh, 136 F.3d at 437.

42

527 U.S. 627 (1999).

43

Id. at 639; Kimel, 528 U.S. at 89 (“Congress never identified any

pattern of age discrimination by the States ....”); Garrett, 121 S. Ct. at 964-65

(“Once we have determined the metes and bounds of the constitutional right in

question, we examine whether Congress identified a history and pattern of

unconstitutional employment discrimination by the States against the disabled.”).

44

Id. at 965.

45

Lincoln County v. Luning, 133 U.S. 529, 530 (1890).

11

the legislative role has been preempted by these later decisions of

the Supreme Court.

3

In assessing the proportionality of the ADA to the injury

identified, Coolbaugh concluded that “Congress’ scheme in the ADA

to provide a remedy to the disabled who suffer discrimination and

to prevent such discrimination is not so draconian or overly

sweeping to be considered disproportionate to the serious threat of

discrimination Congress perceived.”46 In support of this, the

opinion pointed to provisions of both Title I and Title II of the

ADA, but did not lay them next to the baseline of what defines

constitutional state action under the Fourteenth Amendment.47

Both Kimel and Garrett require more. Each decision dissects

the statutory regime in question and carefully compares it to the

baseline definition of constitutional action under the Fourteenth

Amendment. In Kimel the Court considered the bona fide

occupational qualification defense to an age discrimination claim

in the ADEA and the burden of proof in a prima facie case under the

ADEA.48 Garrett specifically focused on the burdens of proof,

46

Coolbaugh, 136 F.3d. at 437.

47

Id. at 437-38 (“We recognize that in some instances, the provisions of

the ADA will prohibit conduct which is not itself unconstitutional and intrude

into legislative spheres of autonomy previously reserved to the States.”)

(internal quotation omitted).

48

Kimel, 528 U.S. at 87-88.

12

exceptions, and defenses available in Title I of the ADA in order

to find that “the rights and remedies created by the ADA against

the States raise the same sort of concerns as to congruence and

proportionality as were found in City of Boerne.”49

Coolbaugh engaged in no detailed discussion of the rights and

remedies available under Title II of the ADA. The distinction

between Title I and Title II, and the necessity of their separation

for purposes of the abrogation analysis, was underscored by the

Court in Garrett when it declined to reach Title II because of its

“somewhat different remedial provisions.”50 Since the

constitutional analysis now requires a greater level of specificity

than employed in Coolbaugh, we are persuaded that it has been

effectively overruled.

V

A

Since Coolbaugh is no longer controlling precedent in our

circuit, we must consider Title II of the ADA anew. Some of our

sister circuits have already held that Title II, or a specific

regulation promulgated pursuant to Title II, does not abrogate

49

Garrett, 121 S. Ct. at 966.

50

Id. at 960 n. 1.

13

state sovereign immunity.51 We have discussed the scope of state

constitutional activity with respect to the disabled,52 and now ask

if Congress has identified "a history and pattern of

unconstitutional [] discrimination by the States against the

disabled"53 in the provision of government services, programs, or

activities. Next, we ask whether Title II is "congruent and

proportional" to the constitutional violation Congress sought to

remedy.

B

Congress, in enacting the ADA, specifically cited

discrimination in “public accommodations, public services,

transportation, and telecommunications.”54 "[H]owever, Congress'

determination of what constitutes 'discrimination' against the

disabled differs from discrimination in the constitutional sense."55

In arguing that Congress made the requisite findings of state

discrimination against the disabled, the plaintiffs refer us to the

report of the Task Force on Rights and Empowerment of Americans

51

See Garcia, 2001 WL 1159970 at *7-8; Thompson, 258 F.3d at 1255;

Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc); Brown

v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 706 (4th Cir. 1999)

(finding regulation enacted pursuant to Title II could not abrogate state

sovereign immunity).

52

See Part III.D.1.

53

Garrett, 121 S. Ct. at 964.

54

Id. at 966 (quoting H.R. Rep. No 101-485, pt. 2 p. 28 (1990)).

55

Thompson, 258 F.3d at 1254.

14

with Disabilities. The plaintiffs argue that Justice Breyer's

appendix to his dissent in Garrett, which summarizes the individual

submissions to this task force, shows the extent of

unconstitutional discrimination against the disabled. First, we

note that the Court described these legislative findings as

“unexamined, anecdotal accounts of 'adverse disparate treatment by

state officials.'”56 The Court focused on the absence of findings

of state discrimination in employment and stated that most of the

examples provided by the task force “pertain to alleged

discrimination by the States in the provision of public services

and public accommodation ... addressed in Titles II and III of the

ADA.”57

A closer look at the legislative history indicates that most

of the examples of arguably unconstitutional governmental

discrimination against the disabled involved local, not state,

government.58 Therefore, examples such as Justice Breyer’s first:

“discrimination against the mentally ill in city zoning process,”59

are insufficient, because Garrett directs us to look only to

56

Garrett, 121 S. Ct. at 966 (quoting id. at 970 (Breyer, J.,

dissenting)).

57

Id. at 966 n.7.

58

See, e.g., id. at 977-93; Thompson, 258 F.3d at 1254 (noting that the

legislative findings deal primarily with local government "discrimination" in

public accommodation).

59

Garrett, 121 S. Ct. at 977 (Breyer, J., dissenting).

15

unconstitutional discrimination by the States.60

Moreover, many of the findings to which we are referred by the

plaintiffs describe facially neutral state policies that are

unlikely to represent unconstitutional discrimination. In order to

prove a violation of the Equal Protection Clause, a plaintiff must

show that a facially neutral state law or practice that has a

disparate impact on a class is intentionally discriminatory.61 What

the Congress has adduced are examples of facially neutral policies

that allegedly have a discriminatory impact on the disabled.62

"Apathetic attitudes and refusals to make accommodations do not

usually violate the Fourteenth Amendment."63

C

60

This narrowing of the analysis in Garrett means that Title II of the ADA

could still be a valid exercise of Congress’ § 5 power, but simply not provide

the basis for a use of that power to abrogate, thus drawing a distinction between

City of Boerne and Seminole Tribe. See Thompson, 258 F.3d at 1253 n.7 (“Because

the Fourteenth Amendment applies to local government entities not entitled to

Eleventh Amendment immunity, the analysis of whether Congress has the power to

enact legislation requires inquiry into constitutional violations by these

entities in addition to entities entitled to Eleventh Amendment immunity.”).

61

Washington v. Davis, 426 U.S. 229 (1976).

62

See, e.g., Garrett, 121 S. Ct. at 979 (Breyer, J., dissenting). The

word “inaccessible,” without more, in this context, is synonymous with

“constitutional” as it implies a facially neutral state policy without evidence

of discriminatory intent. "Inaccessible" appears over 250 times in Justice

Breyer's list of “roughly 300 examples of discrimination by state governments.”

Id. at 970, 977-993. The plaintiffs cite to this list as providing life to their

claim that there are sufficient Congressional findings of discrimination in

public accommodation. In fact the list is fatal to the plaintiffs' case, because

it catalogs presumptively constitutional state action.

63

Thompson, 258 F.3d at 1254.

16

If we were to find the requisite pattern of unconstitutional

discrimination by the States against the disabled, we would still

be faced with a remedial regime that “raise[s] the same sort of

concerns as to congruence and proportionality as were found in City

of Boerne.”64

Title II indisputably embodies more than merely a prohibition

on unconstitutional discrimination against the disabled. Although

it states that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity,”65 other portions of the statute, case law, and regulations

promulgated under Title II create an affirmative accommodation

obligation on the part of public entities that far exceeds the

constitutional boundaries.

First, the ADA defines “qualified individual with a

disability” as:

an individual with a disability, who with or without

reasonable modifications to rules, policies or practices,

the removal of architectural, communication or

transportation barriers, or the provision of auxiliary

aids and services, meets the essential eligibility

requirements for the receipt of services or the

participation in programs or activities provided by a

public entity.66

64

Garrett, 121 S. Ct. at 966.

65

42 U.S.C. § 12132.

66

42 U.S.C. § 12131(2) (emphasis added).

17

Thus, Title II imposes an accommodation obligation on public

entities, requiring them to make “reasonable modifications.”67

Furthermore, courts have recognized that Title II imposes such

an affirmative obligation,68 as does the Rehabilitation Act, which

is virtually identical to Title II.69 Regulations issued by the

Justice Department confirm such an obligation, because they purport

to define its boundaries, creating a defense when modifications

will “fundamentally alter the nature of the service, program, or

activity.”70 The burden of proof on this affirmative defense, of

course, lies with the State—creating another disjunction between

the remedy and injury that contributes to the failure of Title II

in the proportionality and congruence analysis.71

Since the accommodation obligation imposed by Title II and §

504 of the Rehabilitation Act far exceeds that imposed by the

Constitution, we cannot conclude that they are proportional and

67

Title II also imposes restrictions on the purchase of new public

transportation vehicles, requiring them to be accessible. 42 U.S.C. §§ 12142 to

12144.

68

See, e.g., Thompson, 258 F.3d at 1250-51; Alsbrook, 184 F.3d at 1009;

Coolbaugh, 136 F.3d at 437.

69

School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987).

70

28 C.F.R. § 35.130(b)(7).

71

See Part IV.D.3; Garrett, 121 S. Ct. at 967.

18

congruent to the legislative findings of unconstitutional

discrimination against the disabled by the States.72

V

Finally, the plaintiffs argue that Louisiana has waived its

sovereign immunity under the Rehabilitation Act by accepting

federal monies.73 We generally will not consider arguments not

raised in the district court unless it is a pure question of law

and our refusal to consider the question will result in a

miscarriage of justice.74 We therefore decline to reach this

question.

72

We are aware of the approach adopted by the Second Circuit in Garcia v.

S.U.N.Y. Health Sciences Center of Brooklyn, No. 00-9223, 2001 WL 1159970 (2d.

Cir. Sep. 26, 2001), which held that certain claims against the States under

Title II may proceed even though Title II as a whole cannot abrogate state

sovereign immunity. Garcia noted first that Title II incorporates the remedial

regime of the Rehabilitation Act, which in turn incorporates the remedial regime

of Title VI of the Civil Rights Act, which the Court has held includes an implied

private cause of action. See id. at *8-9. Using its power to shape the

judicially implied remedy, the Garcia court imposed its own restriction on the

availability of relief under Title II; requiring plaintiffs "to establish that

the Title II violation was motivated by discriminatory animus or ill will based

on the plaintiff's disability." Garcia, 2001 WL 1159970 at *9. Garcia concluded

that this restriction, because it encompassed "generally the same actions that

are proscribed by the Fourteenth Amendment" limited Title II "so as to comport

with Congress's § 5 authority." Id.

We need not reach this question, as the parties have not raised it in this

case. We note, however, that Garcia would allow recovery for a State’s refusal

to accommodate the disabled in violation of Title II, provided that decision was

motivated by discriminatory animus. See id. at *7, *10. The Garcia remedy

therefore apparently suffers from the same defect that we have identified in

Title II, because the Constitution imposes no such accommodation obligation.

Garcia’s solution may be additionally flawed because, as we have noted, not all

decisions governed by animus violate the Fourteenth Amendment. See Part IV.D.1.

73

42 U.S.C. § 2000d-7; Lane v. Pena, 518 U.S. 187, 200 (1996) (holding

that Congress created a waiver of Eleventh Amendment immunity under the

Rehabilitation Act).

74

McDonald's Corp v. Watson, 69 F.3d 36, 44 (5th Cir. 1995).

19

VI

Since Congress has not validly acted through its Fourteenth

Amendment § 5 power to abrogate state sovereign immunity, LDPSC was

entitled to dismissal of both the Title II and Rehabilitation Act

claims. We therefore REVERSE.

20